Roundup: Pot Clubs, Wiretapping & Harris, Oh My!

Marijuana and wiretapping – they’re all fun and games until somebody ends up in court.

That’s true for Charles Lynch, who will be sentenced on Thursday and faces up to five years in prison for running a pot dispensary in San Luis Obispo County. Lynch claims he ran his shop in accordance with state law and was a licensed “caregiver,” and Attorney General Eric Holder made comments in March that seemed to indicate that new, less-aggressive federal marijuana enforcement wouldn’t target such dispensaries.

“Psyche!” Plus Al Haramain and a Kamala Harris cameo, after the jump.

The judge presiding over the case asked prosecutors to tell him whether Holder’s comments mattered for Lynch, and Justice Department higher-ups in Washington, D.C., responded on Friday by giving thumbs up to the prosecution. With the government putting its foot down on Lynch, LegalPad’s eyes turn to a case in San Jose federal court, Santa Cruz v. Holder, that seeks to prove intentional and illegal federal interference in California’s medical marijuana regulations. Judge Jeremy Fogel has indicated that if the government wants to settle that case, which it will have a chance to do at a May 11 settlement conference, the plaintiffs will need to see the new policy declared in writing.

When it comes to wiretapping, it’s the plaintiffs who are smiling and the government that’s under the gun. In the closely watched Al-Haramain case, in which a defunct Islamic charity alleges the government illegally tapped its American attorneys’ phone calls, Chief Northern District Judge Vaughn Walker isn’t budging in the face of a sustained government campaign to derail the litigation.

So far, Walker hasn’t determined whether the government actually spied on the plaintiffs, but if the case ever reaches the merits, he could have the opportunity to rule on the constitutionality of the Bush administration’s warrantless wiretapping program, something no other pending case will get a chance to address.

In an order filed Friday, more than a month after the government said Walker had no authority to let plaintiffs in on classified information that could be key to proving wiretapping, Walker told the government and the plaintiffs to craft a protective order so he could do just that and move forward with the case.

Jon Eisenberg, an Oakland attorney representing Al-Haramain, said Walker’s order was carefully designed to keep the case rolling.

“He’s done it in a way that’s unappealable,” Eisenberg said. “There’s no ruling by this judge at this time that he has power to decide ‘need to know,’ he just simply didn’t address it.” Now, Eisenberg said, the government has to decide whether to “comply or defy,” with the possibility the Walker could hold government lawyers in contempt if they simply refuse to go forward.

[Update: Cindy Cohn offers some perspective in the comments below, and we put together a reply in a new post, right here.]

And finally, in news that has nothing to do with marijuana or wiretapping (unless Kamala Harris is up to something we don’t know about), San Francisco’s district attorney and attorney general hopeful picked up the endorsement of the state senate’s president pro tem today. With a little over a year until California votes on AG, LegalPad expects many more of these to come.

— Evan Hill

Comments

[Cindy Cohn]

Thanks for continuing to follow the Al Haramain case, but I must take issue with this claim:

"So far, Walker hasn’t determined whether the government actually spied on the plaintiffs, but if the case ever reaches the merits, he could have the opportunity to rule on the constitutionality of the Bush administration’s warrantless wiretapping program, something no other pending case will get a chance to address."

The EFF's Jewel v. NSA case is aimed directly at the constitutionality of the NSA's warrantless wiretapping, as is another case called Shubert. Additionally, nearly all of the thirty-one currently pending cases against the telecommunications carriers raise constitutional claims, although they have the extra hurdle of the retroactive immunity law passed last summer. Nonetheless, all of those cases are clearly still pending.

Perhaps you are referring to the portion of the warrantless wiretapping that the Bush Administration openly admitted -- targeted warrantless wiretaps where one person is suspected of being involved in terrorism. That class of cases is different than Jewel v. NSA and the telco cases which address the constitutionality of dragnet surveillance of millions of nontargets as part of the warrantless wiretapping. But even so your assertion is still incorrect since targeted surveillance is claimed in the case still pending in the Multi-District Litigation before Judge Walker brought by the Center for Constitutional Rights on behalf attorneys and others involved in Guantanamo Bay defense cases.

Obviously this is a big and confusing set of cases, so I understand that it's hard to get it precisely correct in a short blog post, but I would hate for anyone to mistakenly think that only the Al Haramain case can address the constitutionality of the warrantless wiretapping.

Thanks!

Cindy Cohn
Legal Director
Electronic Frontier Foundation
(counsel in Jewel and co-lead coordinating counsel in the NSA wiretapping MDL)